May 2009

  • May 30, 2009
    Guest Post

    By Hamid M. Khan, a Fellow with the Truman National Security Project, an associate with McKenna Long & Aldridge LLP and an Adjunct Professor at the University of Colorado Law School
    Over the past few weeks, Americans have been cloistered into a confessional about this nation's dealings in the aftermath of 9/11. We have been bombarded by fresh controversies over the CIA's detention and interrogation policies under the Bush Administration, assertions by former Vice President Dick Cheney that the harsh interrogation of terrorism suspects helped save thousands of American lives, and Speaker Pelosi's denials she was informed about the CIA's use of waterboarding and accusations the agency mislead Congress not to mention the impasse surrounding where and how to house those remaining detainees being housed at the U.S. Naval Station at Guantanamo Bay, Cuba. The collective exasperation to the present state of affairs can largely be attributed to the overarching issue facing us as a nation: How did we get into this situation in the first place?

    We have begun to realize the current state of affairs occurred partly because, for years after 9/11, many of our national institutions did not do their jobs, many did little to voice their opposition and the media were often lap dogs rather than watchdogs. And while the Obama Administration had hoped the recent release of the so-called torture memos would shed some light on some of our darker practices; the ensuing tumult, from both sides of the aisle, has only made things more difficult. For many, the controversies alone should offer the case for an independent inquiry: what better way to sweep aside the politics and get to the facts than establishing a Truth Commission?

  • May 29, 2009
    Guest Post

    By Jennifer Granick, Civil Liberties Director, Electronic Frontier Foundation

    National commitment to cybersecurity is welcome, but government control of the internet is not. This morning's White House-issued cybersecurity proposals seem to recognize this distinction and are therefore vastly preferable to the Rockefeller-Snowe Cybersecurity Act introduced into Congress last month.

    Today, President Obama announced that he would create a White House-level position of "cyber czar" to coordinate and oversee federal efforts to improve network security and response to cyber attacks. At the same time, the White House released a cybersecurity report giving more specific proposals for how the federal government can improve the security of our national networks. Together, the proposals credit the importance of protecting both the network and civil liberties, though the devil will be in the details.

  • May 28, 2009
    Guest Post

    By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.
    In what can only be described as results oriented decision-making of the worst sort, a divided Supreme Court in Ashcroft v. Iqbal, went the extra mile to protect high-ranking federal officials from accountability for their unlawful conduct. The case involved a Bivens damage action by Javaid Iqbal, a former inmate of a super-max prison in New York, alleging that a number of federal officials, including Attorney General John Ashcroft and FBI Director Robert Mueller, violated his rights under the First and Fifth Amendments when they created a policy that assigned Iqbal to a harsh-treatment detention facility solely because he is an Arab Muslim.

    In reversing the ruling of the Second Circuit, the Court's five most conservative members ignored precedent and reversed longstanding policy in a head-long rush to protect Ashcroft and Mueller (right) from answering for their discriminatory actions. In the process the Court ended all supervisor liability for federal officials under Bivens even though various forms of such liability were conceded by the Government and recognized by all federal circuits that had addressed the issue.

    The majority did not stop, however, with protecting supervisory federal officials from constitutional accountability. The opinion, written by Justice Kennedy, went further and also found that even if, as alleged by Iqbal, Ashcroft and Mueller were not acting as mere supervisors, but were personally involved in designing a intentionally discriminatory policy, such allegations were insufficient under Rule 8 to state a claim because they were too general to be afforded the assumption of truth when ruling on a motion to dismiss. Using its newly minted "plausibility" test for interpreting Rule 8's notice pleading standards, the majority, in effect, required Iqbal to do the impossible and include behind-the-scenes factual detail in his complaint to withstand a motion to dismiss. This one-two punch - no supervisor liability and a new Rule 8 plus pleading standard requiring factual detail known only to the government - will place most high-ranking federal officials beyond the reach of judicial remedies for constitutional violations.

  • May 28, 2009
    Madison's Nightmare
    Executive Power and the Threat to American Democracy
    Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law and Director of the Project on Law and Democratic Development, Ohio State University, Moritz College of Law
    In its early months, the Obama administration is posing some puzzles for American progressives. On one hand, America - including the political left - is clearly looking for robust and decisive presidential action to help deal with two wars abroad, an energy crisis, global warming and a series of domestic calamities that have shaken the nation's economy to its roots. On the other, decisions to invoke the state secrets privilege in national security litigation, to withhold photographs of aggressive interrogations from public view and to revamp rather than abandon military commissions have left many wondering whether the current Administration can be counted on to curb the abuses of power that many saw as the hallmark of the Bush-Cheney era.

    These contrasting impulses pose obvious questions: How should a President calibrate his ambitions? Is it possible to address national problems with sufficient energy and vigor without making implausible claims of underlying presidential authority? And where do Americans, if they care about checks and balances, exert their political energies to help keep the executive branch within the law?

  • May 28, 2009

    Brooksley Born (right) is a trailblazer for women in the legal field and a member of the ACS Board of Advisers. Her recent profile in The Washington Post outlines Born's rise to prominence and examines her early warnings about a financial crisis founded in derivatives trading.

    "A little more than a decade ago, Born foresaw a financial cataclysm, accurately predicting that exotic investments known as over-the-counter derivatives could play a crucial role in a crisis much like the one now convulsing America," reports The Post. "Her efforts to stop that from happening ran afoul of some of the most influential men in Washington."

    Friends nudge the woman who saw the catastrophe coming.

    They want Brooksley Born to say four words, four simple words: "I told you so."

    Ah, but she won't -- not at legal conferences or dinner parties. Not even in a quiet moment in her living room, giving her first interview with a major news organization since last fall's economic collapse.

    She just smiles, perched ever so properly in an upholstered armchair at her Kalorama home.

    "More coffee?" she asks daintily, changing the subject.